The Cyber-Library: Legal and Policy Issues Facing Public Libraries in the High-Tech Era

INTRODUCTION

Since the inception of the public library movement in the mid 19th century, public libraries have occupied a unique and critical role in American society. To generations of Americans—native born and immigrants, rich and poor—public libraries have provided free access to resources that stimulate the mind, nourish the imagination, and connect individuals to people and events outside the boundaries of their own experiences. Libraries have been conduits for information about jobs, government programs and community services. As public spaces, they have served both as safe havens for private reflection and as meeting places for community functions.

In all these various roles and for all these reasons, public libraries in the United States and around the world have promoted values and experiences that are fundamental to a democratic society, offering equal access to essential tools for informed participation in the political process. The First Amendment to the United States Constitution¹ guarantees "public access to discussion, debate and the dissemination of information and ideas"² and the public library has been recognized as a "quintessential locus" for such access.³ In the European community, too, public libraries are acknowledged as bulwarks of an open, equal society.⁴

The traditional roles of public libraries and librarians are under new scrutiny, however, as computers and the Internet challenge familiar notions of community and defy common assumptions about what, how, where and with whom we learn and communicate. To remain viable public institutions, libraries—and the communities that support them—must revisit and clarify their mission, identifying and capitalizing on the services they are uniquely positioned to offer and exploiting the technology to best advantage. The task is complicated by the fact that the landscape continues to change as the technology evolves and becomes available in more and more households⁵ and at alternative access points like free-standing information kiosks and community technology centers.⁶

Most libraries in the United States are now connected to the Internet, and some have moved beyond connectivity in ways that complement and supplement existing programs and services. The Internet contains a nearly infinite array of material from sources around the globe, some of it reliable, some not. Many librarians are at the front lines of technology training, educating new computer users in search techniques and helping them evaluate the relevance and validity of online information. Some libraries are becoming Internet "publishers," often as part of a network that creates a virtual public space to reinvigorate a real world community. Some are also using the full potential of the technology, including e-mail and chat functions, as a magnet to attract new patrons and introduce them to a wide variety of services and materials, including books. These substantive programs and outreach efforts are especially significant for underserved populations who, at this point—and perhaps for some time to come—might otherwise be denied the benefits of the new technology.

Sadly, these positive developments are often overlooked, at least in the popular media, in favor of campaigns to restrict or limit access to the Internet, based on concerns about material with explicit sexual or violent content.⁷ Most local libraries have developed policies and procedures to handle these issues without censorship, but calls for mandatory filtering and other forms of restrictions continue to engage the public discourse and to threaten library users' ability to exploit the full potential of the medium. The economics of the new technology also pose serious issues. The cost of hardware, software, upgrades, training and staff necessary to move beyond connectivity to provide meaningful access and user support is a significant barrier for many libraries, forcing them to look for new sources of funds and to rethink priorities.

The challenges are significant: Will the Internet become an effective force for promoting the free flow of information and ideas, or an excuse for restricting it? How can the library secure its role as the facilitator and defender of free thought and inquiry? In planning for both the short-term and the long-term needs of local libraries, decision-makers face a number of important issues:

• What are the current roles of the library in the community? What segments of the community use the library and how do they use it? What are the special needs of minors? Of new Americans? Of underserved populations?
• What roles can and should the library play in the future and how can technology be used to support and enhance those roles? Taking into account the availability of Internet access elsewhere in the community—in schools, other public outlets, and in homes—should the library focus or prioritize its electronic resources? If so, how? Research and information gathering? Adult learning? Entertainment? What programs and services are necessary to support these uses?
• What is the library's obligation to provide training in effective use of the technology? How can the library respond to the difficulties of assessing the reliability of information on the Internet?
• What are the risks and benefits of Internet use for different populations and what policies and programs should the library adopt to help patrons use the medium wisely? How can these policies be shaped consistent with the First Amendment and the values of privacy and anonymity? What are the appropriate roles for library staff, parents and others in making decisions about minors' access?
• What hardware, software and other electronic resources (for example, commercial databases) will be needed to implement the library's goals and objectives? What are the associated staff and maintenance costs? What will be the bottom line and where will the funds come from?

This paper is intended as a resource for communities seeking to take advantage of the benefits of technology without sacrificing free speech and inquiry. Part I offers an overview of the ways in which libraries are using the Internet to serve and engage their communities. Part II addresses efforts to censor Internet use in libraries and the implications of First Amendment jurisprudence. It examines some of the concerns raised by censorship advocates and summarizes libraries' responses to these efforts. Finally, Part III explores the overall impact on access to information as libraries develop and fund technology plans.

I. LIBRARIES ONLINE: SOME MODELS FOR THE INFORMATION AGE

It is still too early to determine the unique information niche that libraries will fill in the next millennium. In the meantime, these public institutions are exploring ways to maximize technology to meet local needs. This section examines some of these approaches and the ways in which they promote First Amendment values.

A. The Library as a Safety Net

Despite the explosive increases in computer ownership and Internet use, not all Americans are beneficiaries of the technological revolution. Indeed, the Internet is "one of the more polarized aspects of life today in America."⁸ A July 1998 study by the National Telecommunications Information Administration revealed significant disparities in computer ownership and use based on income level, race and geographic location. Among the "least connected" Americans are rural and central city minorities, the rural poor, single-parent and female headed households and young households. Significantly, the "digital divide" became more pronounced between 1994 and 1997, when the gap between those at the upper and lower income levels and between Blacks and Hispanics and Whites widened significantly.⁹

There are some contradictory data regarding computer ownership among higher income African-Americans,¹⁰ as well as evidence that the disparities between Whites and other groups may be diminishing.¹¹ Nevertheless, to the extent it remains, the "digital divide" portends further inequalities. As the authors of a recent study emphasized, "the Internet may provide for equal opportunity and democratic communication, but only for those with access."¹² Familiarity with the varied aspects of new technologies is fast becoming an essential employment skill,¹³ and workers with computer skills are likely to earn more than those without them.¹⁴ The Internet also facilitates access to employment opportunities, as well as important government services.¹⁵ Finally, to the extent the Internet promotes participation in the political process though enhanced access to information, e-mail to government officials, and online discussions, those without access remain at a disadvantage and without a voice.¹⁶

More than 73 percent of public library outlets in the United States now offer some form of public Internet access, and the number is fast approaching the goal of universal connectivity.¹⁷ However, as the National Commission on Libraries and Information Science has recognized, universal service alone is not sufficient to bring underserved populations into the information age. The library can serve as a safety net only if it can provide Internet "have-nots" with the same quality of access and services available to others. This requires "graphic capability as well as sufficient speed, workstation functionality, and staff support to meet local needs."¹⁸ But almost half of all connected libraries—43 percent—have only one graphical workstation, and rural libraries are less likely than those in urban and suburban areas to have high speed connections.¹⁹ Libraries serving smaller populations also lag behind in providing online catalogues, commercial and local information databases.²⁰ While most libraries do offer computer training, smaller and less well-funded institutions are less likely to do so.²¹

Moreover, some of those on the losing side of the digital divide such as the urban poor may already have access to the Internet through local public libraries,²² but may not be taking advantage of the technology. Library use is positively correlated with education and income,²³ and for some adults, lack of a perceived need, language and educational barriers, and other social and cultural forces may inhibit experimentation with the Internet at a local library even if access is available. There appear to be parallel issues for students. For example, Novak and Hoffman report that African American students without home computers are less likely to take advantage of alternative Internet access locations, including libraries, than similarly situated White students.²⁴ Because these issues are so important, the National Commission on Libraries and Information Science has identified a need for further research to assess libraries' success in serving those who lack other Internet access and to identify how libraries can be more effective in reaching underserved populations.²⁵

B. The Library as a Center for Community, Information and Learning

Still, there is high demand for Internet use at all libraries, by millions of adults and children, including those who have other access points. Indeed, public libraries represent the first choice among a number of other locations as a public point of Internet access outside of home, school and work.²⁶ There is currently no baseline national data on precisely why these individuals are looking to the public library for Internet access, how or to what extent they are using the technology.²⁷ However, the anecdotal evidence gives some clues. With librarians as expert guides, many libraries are integrating technology into existing programs, including children's services and homework centers.²⁸ Libraries are enhancing their reference collections with electronic resources, including commercial databases of magazines, newspapers and sometimes more specialized sources. As of 1997, about ten percent of public libraries—mostly in large cities—had home pages on the World Wide Web.²⁹ Some of these include online catalogues, remote access to databases and guidance on finding and selecting online resources.

Some libraries have embarked on more extensive (and more expensive) efforts to use the Internet to build and strengthen real-world communities, attract new users and enhance the library's role as a source of information and learning. These initiatives, too, draw on librarians' expertise in selecting and evaluating material, as well as the role of the library in integrating immigrant populations and its position as a welcoming public space. Many of these efforts, including some described here, are detailed in a recent report by Libraries for the Future, Public Space in Cyberspace.³⁰

• Many libraries are integrating technology into programs and services for new Americans and ethnic populations. The San Francisco Public Library, for example, offers Internet training classes in Spanish, Chinese, and Japanese and has linked its own web site to online versions of newspapers and magazines from around the world. The Brooklyn Public Library's web site includes a selected list of links to sites in Chinese, Spanish, Russian, French and German. Adult education and literacy programs in a number of libraries stress computer literacy as a means of promoting print and media literacy and coordinate training with online activities including job searches.
• A number of libraries provide opportunities for local teens to develop their own technology-based skills while learning about and serving their communities. In Queens, New York, teenagers are paid to serve as computer mentors for adults in the systems' 62 branches. In libraries in Newark, New Jersey; Oakland, California; and Flint, Michigan, teens are learning e-journalism skills, researching issues about their communities and posting them on the web. The Newark and Oakland programs have their own sites, with information and interactive opportunities for other teens. The Flint teens post information about local history and social service agencies on the library's site.
• Increasingly, libraries are creating web sites that link users with critical civic information—calendars of local government activities, databases of services, employment listings and volunteer opportunities, accessible from the library and, in many cases, by remote users. In response to community interest, some libraries are providing materials about specific topics. For example, the Seattle library's main catalogue now contains hyperlinks to information about Puget Sound, developed by People for Puget Sound.³¹
• Libraries are also participants in—and sometimes the anchors or founders of—community networks.³² One successful project is CamNet, based in Camden, New Jersey <http://www.cyberenet.net/~ccl/camnet.htm> which links over 4,000 computers in approximately 150 schools and public libraries to the Internet. Web-accessible databases are offered through the Camden Country Library to members of the Network at special discounted prices, and each participating institution is entitled to 4 free e-mail accounts.

C. The Library as a Place to Communicate

The media proclaim that Chat is Where It's At³³ and that the U.S. is "E-Mail Nation."³⁴ For some users, these communications functions are the most compelling aspects of the Internet. Indeed, for many reasons, Internet communications may be as vital to an open and equal society as information gathering. And at this point, libraries offer critical access points for Internet communications for those who seek privacy and anonymity, as well as for those who have no other access.

Some librarians complain that chatters and e-mail users disrupt other patrons and that these uses decrease the time available for "serious research." But most have found that their concerns can be addressed successfully through time limits on Internet use, Acceptable Use Policies,³⁵ and enforcement of general rules regarding appropriate conduct in the library.

Many librarians also recognize a direct pay-off from offering Internet communications to the public. E-mail and chat are magnets drawing new and often inexperienced users, including some technology have-nots, to the Internet³⁶—and to the library. One librarian explains:

So many patrons . . .come in to use the Internet computers because they can e-mail or chat. . .And that's when we strike! We show them how they can find health, financial, genealogical . . . information on the Internet and soon they're hooked doing real' research. It gives us a chance to work in a little bibliographic instruction too. The PR benefit is enormous! And they come back . .³⁷

Some libraries have leveraged these benefits by integrating Internet communications into existing programs designed to encourage familiarity with the technology and with other skills. For example, a number of library-based adult education and literacy programs encourage chat and e-mail.³⁸ For new Americans, especially, this may be the most reliable and least expensive way to keep in touch with friends and relatives outside the country.

Indeed, e-mail and chat facilitate a nearly infinite array of relationships and communities. They provide mechanisms for individuals like senior citizens and victims of diseases like AIDS to escape their isolation and share critical health information and needed support. Minors also benefit from e-mail, chat and newsgroups. Whether the topic is Leonardo diCaprio or impeachment, educators praise the Internet as a place where kids can evaluate arguments and express opinions safely, without worrying about who's looking or what other people think, a rehearsal for active participation in the political process.³⁹ For some teens, electronic communications help develop and refine skills and expand horizons. For others, these functions are literally a lifeline. According to an April 1998 survey, forty percent of homosexual youth who think of suicide go online to find someone to talk to. Fifty-one percent reported that online contacts were "crucial" to their well being.⁴⁰ Yet, as a recent article underscores, many eager teens (and of course many adults) cannot access the Internet at home and must depend on alternative access points.⁴¹

The technology is not without its detractors, however. The prevalence of online communities cemented by increasingly narrow common interests has some commentators worried, and the long-term impact of the Internet on the political process remains unclear. The personalization of news and information, the ability to tune out opposing viewpoints and communicate only with like-minded people, could lead to a fragmented society, without a set of shared understandings. Democratic institutions may be undermined by the influence of so many voices motivated by narrow self-interest. At the same time, an overload of information, exacerbated by e-mail, requires speakers to become increasingly hyperbolic to compete for attention.⁴² Finally, just as anonymity allows speakers to avoid being judged by stereotypes based on age, sex or race,⁴³ it also eliminates the opportunity for listeners to confront their prejudices.

Nevertheless, it is well recognized that Internet communications are a valuable political tool. Overseas, e-mail is a target of repressive regimes precisely because it is an effective means of sustaining political dissent.⁴⁴ In the United States, some government agencies are soliciting and responding to e-mail from the public on specific issues. For example, in March 1999, the Federal Deposit Insurance Corporation withdrew a proposal to monitor individuals' bank transactions based on 205,000 e-mail messages opposing the proposal. The agency had described the proposed regulation on its web site, set up an e-mail box for comments, and provided staff to review and summarize those comments.⁴⁵ Another example of electronic political activism is MoveOn <http://www.moveon.org> a virtual grass roots movement that collected 450,000 signatures to an online petition to "censure [President Clinton] and move on" and raised $13 million to defeat candidates who had voted for impeachment.

In addition to fostering direct action, Internet communications also facilitate informed participation in the electoral process. Projects like NYC Dnet <http://www.nyc.dnet.org>, the New York City affiliate of the national democracy network <http://www.dnet.org>, not only provide detailed local information about candidates and issues, but also encourage users to use e-mail to ask questions, to engage in dialogue and discussion and to respond to online polls. The site identifies more than 200 libraries and community centers offering public Internet access, underscoring the importance of these local institutions in ensuring that all citizens have an opportunity to learn and make their voices heard.

II. EFFORTS TO CENSOR THE INTERNET IN PUBLIC LIBRARIES

A key policy issue affecting the ability of libraries and their patrons to exploit the full potential of the medium is the debate over restricting access to the Internet. Like other innovations in communications, the Internet revives old fears about the power of images and words and raises important questions about the ownership and control of information. The latter issue, beyond the scope of this paper, is at the heart of discussions over changes in copyright law and proposals for commercial database protections.⁴⁶ The former is tied to more direct and familiar forms of censorship.

Concerns about violent and sexually explicit material and, in particular the effects on children, have spawned numerous proposals for government regulation of Internet content. These include legislation imposing "upstream" restrictions on the transmission of material as well as mandates for "downstream" controls—filtering and blocking software to limit user access at public institutions. Legislation currently pending at both state and federal levels would require schools and libraries to filter the Internet as a condition for receipt of government funds for technology,⁴⁷ and the focus on Internet content control has supported a thriving industry devoted to developing and marketing filtering software.

Proposals directed at e-mail and chat in public libraries are based on similar rationales about the need to protect minors. Indeed, some believe that e-mail and chat pose particular risks as venues for online enticement, and because, more often than other Internet uses, these functions elicit "spam," unsolicited bulk e-mail that may include sexually explicit teasers. In its preliminary report, Kids on the Internet: The Problems and Perils of Cyberspace, the National Commission on Libraries and Information Science recommended that libraries limit children's chat to specifically approved moderated chat groups and designated interactive sites.⁴⁸ Some would ban chat and e-mail from public institutions altogether.

In the few cases decided thus far,the courts have rebuffed efforts to censor the Internet, finding that the government did not meet the high level of justification required by the First Amendment.⁴⁹ However each of these courts assumed—at least for purposes of litigation—that the government had a "compelling" interest in protecting minors. Yet, as discussed below, the evidence of harm from Internet access at public institutions is at best equivocal, and the blunt-edged approach advocated by pro-censorship advocates ignores the individualized needs of children and their parents. Fortunately, most libraries have found ways of balancing the interests of all parties effectively, without censorship. Some of these "less restrictive alternatives" are summarized in this section.

A. First Amendment Principles in Cyberspace

According to the Supreme Court, cyberspace is a free speech zone, and the Internet is thus entitled to the highest level of First Amendment protection. To meet constitutional standards, restrictions on online speech must be both necessary to serve a "compelling interest" and the least restrictive means of doing so.

1. The Constitutionality of "Upstream" Content Restrictions.
In the first case to articulate these principles, Reno v. ACLU ("Reno I"),⁵⁰ the Supreme Court struck down provisions of the Communications Decency Act⁵¹ that criminalized the knowing transmission and display of "indecent" material to minors under the age of 18. Although acknowledging a government interest in protecting minors from certain types of sexual content, it held the statute unconstitutional because of its broad reach and its ambiguous language. (What, precisely, is "indecent"?) The combined effect of these infirmities, the Court concluded, would suppress not only unprotected material, but also "much speech that adults have a right to receive and to address to each other," and would be like "burning the house to roast the pig."

Following Reno I, Congress passed the Child Online Protection Act (COPA), specifically drafted in an effort to avoid the constitutional pitfalls of the CDA. In a decision that is now on appeal, a federal district court in Philadelphia enjoined enforcement of the statute.⁵² It held that the legislation failed the strict scrutiny test in part because it was simply ineffective in solving the alleged problem of minors' access to sexual materials. The Internet transcends national boundaries, and, as a practical matter, the statute could not preclude minors from obtaining sexual materials from foreign sites, which are not subject to U.S. jurisdiction. Nor could it curb enterprising and technologically savvy minors from bypassing mechanisms designed to permit adult-only access. In any event, the court noted, less restrictive and equally effective means to protect children are available, including blocking and filtering software capable of "downstream" regulation of content, regardless of its source.⁵³

2. The Constitutionality of "Downstream" Content Restrictions: Blocking and Filtering Internet Access in Public Libraries
Blocking and filtering software suffer from numerous and serious flaws, which have been repeatedly and persuasively documented.⁵⁴ Such devices are under- and over-inclusive, employ subjective judgments, exclude a great deal of useful and harmless information, and often conceal both the criteria for blocking and information about what material is blocked. While individuals are free to block or filter Internet access at home, the use of such technology in public institutions is constitutionally suspect. In Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, a federal district court in Virginia, applying the strict scrutiny test, held that the installation of blocking software at all Internet terminals at a local library violated the First Amendment.⁵⁵

Several aspects of the decision are significant for local libraries. First, although the court assumed a compelling interest in minimizing minors' access to sexually explicit content, it found that the policy was not necessary. The library offered no evidence of problems involving minors at its own facility and presented only isolated instances of incidents elsewhere. One of these was successfully resolved by the use of a privacy screen⁵⁶ which, in addition to acceptable use policies and educational programs, was a less restrictive option that the library could have implemented, but did not.

Finally, the court found that the library had impermissibly delegated blocking decisions to a private company which censored material based on "secret criteria" that it refused to disclose, even to the library itself. Adult patrons could request that library staff "unblock" a particular site, but the court concluded that the request procedure imposed an unconstitutional burden on library patrons and gave staff unbridled discretion to reject any request.

A second library case, decided without opinion by a California Superior Court, Kathleen R. v. City of Livermore,⁵⁷ presents the flip side of Mainstream Loudoun: whether a library can be held civilly liable for declining to filter the Internet. The plaintiff's 12-year old son had allegedly downloaded pornography, and she claimed that the library was maintaining a public nuisance and violating other state laws. The court dismissed the claims,⁵⁸ and the case is now on appeal.

3. A Constitutional Right to Chat?
So far, no court has addressed the constitutional dimensions of the right to chat and e-mail in public institutions.⁵⁹ Libraries that have never used Internet Relay Chat ("IRC") software and have never offered e-mail are probably not constitutionally required to so do, any more than a library with a full complement of books is required to buy audiotapes. But increasingly, the ability to chat, to send and receive e-mail, and to participate in newsgroups does not depend on specialized software or knowledge of distinct Internet protocols: all that is required is access to the World Wide Web.⁶⁰ And First Amendment principles suggest that having made the decision to offer web access, libraries may not be able to limit access to these communications functions unless the strict scrutiny test is met.

Under the First Amendment, even apparently neutral rules—for example, a blanket ban on all chat—are suspect if the "predominant intent" behind the regulation is to discriminate against controversial or unpopular ideas or viewpoints. "The government's purpose is the controlling consideration."⁶¹ Thus, if the clear intent is to restrict access to sexual material, limits on chat and e-mail may fail to pass constitutional muster for many of the same reasons that the courts have invalidated other approaches to controlling Internet use.⁶²

4. Censorship Through Funding Restrictions
Legislation currently pending in Congress would mandate the use of blocking and filtering software by libraries and schools that take advantage of the federal "E-Rate"("education rate"),⁶³ a discounted rate for wiring and telecommunications equipment made available pursuant to the Telecommunications Act of 1996.⁶⁴ The focus of the legislation is child pornography, obscenity and material deemed "inappropriate" for minors. Several state legislatures are considering similar conditions on funding Internet access in public institutions.⁶⁵

Using government purse strings to pressure local officials to engage in Internet censorship raises troublesome Constitutional questions if the purpose is to suppress certain viewpoints or categories of speech. In a recent case involving federal funding for the arts, the Supreme Court said that "the power to award subsidies" cannot be used to impose a "penalty on disfavored viewpoints"or to "drive certain ideas or viewpoints from the marketplace.' "⁶⁶ The Court has also held that financial benefits generally available to student publications at a public university could not be withheld from a Christian student newspaper because of its message, even though the state's action in denying funding was based on concern about its obligations not to promote or "establish" religion.⁶⁷

Proponents of funding restrictions rely principally on a case in which the Court upheld government funding to provide family planning services, but excluded abortion-related services.⁶⁸ The Court held that the "program has not discriminated on the basis of viewpoint; it has merely chosen to fund one activitiy to the exclusion of another." The ruling appears to have little application outside the abortion context, and is distinguishable from a situation in which subsidies intended to facilitate Internet connectivity in public institutions are explicitly conditioned on censorship of certain content.

B. Evaluating the Risks to Minors

The public attention directed at proposals to restrict access to the Internet in public libraries has obscured critical discussion of the nature and extent of the purported dangers of cyberspace. Certainly, the Internet is replete with offensive and disturbing material—racial and ethnic slurs, violent images and sexual material of all kinds. Relationships begun in cyberspace may becoming harassing or may be continued in the real world, where they may pose some risk. Still, a closer look at the evidence suggests that the dangers of unfettered Internet use are greatly exaggerated, particularly where access occurs at a public institution. And as the courts have noted, the benefits of censorship are, at best, "unproven."⁶⁹

1. Children and Pornography
Librarians report anecdotally that younger children tend to use the Internet for playing games and return to the same sites rather than simply "surf."⁷⁰ Young children also typically require assistance in Internet research, and the guidance of an accompanying adult—a parent or librarian—also minimizes the potential for stumbling across pornographic sites during this activity. Certainly, some children do deliberately seek out sexually explicit material. But after more than two years of aggressive efforts to collect data, the pro-censorship organization Filtering Facts identified only 196 such incidents.⁷¹ Considering that an estimated 344 million children visit public libraries each year⁷² and that nearly three-fourths of these libraries offer some form of public Internet access⁷³ this evidence belies the claim that there is a problem of "epidemic" proportions.

Moreover, the evidence of harm from viewing pornography is, at best, inconclusive. Significantly, none of those advocating restrictions on Internet access in public libraries present any data showing that occasional exposure to online pornographic material—whether accidental or deliberate—has adverse effects on either young children or older minors.⁷⁴ Based largely on studies of adults, experts on both sides continue to debate the effects of more sustained exposure, but there is no scientific consensus. More than thirty years ago, the Supreme Court questioned whether material deemed to be "harmful to minors" actually impaired "the ethical and moral development of our youth." Although it upheld the right of the state to regulate, the Court concluded that a causal link had not been demonstrated.⁷⁵ In terms of the available research, the situation has not materially changed.

2. Online Stalking and Enticement
The Internet does not create new crimes or criminals, so much as a new environment for criminal acts. That does not make the Internet a uniquely risky environment. In fact, the odds that any particular online conversation will lead to either online harassment or a dangerous real world encounter are relatively small considering that more than 16 million children in the United States—nearly one in four—are online⁷⁶ and that millions of communications are occurring at any given moment. And these odds, too, can be decreased significantly if children are educated to follow some basic guidelines about dealing with strangers online, such as not giving out names, phone numbers or other personal information.⁷⁷

Since 1995, the FBI has arrested 270 individuals who stalked children online.⁷⁸ For the two-year period ending in December 1998, the National Center for Missing and Exploited Children reported 140 "traveler" cases, in which a child left home or was targeted by an adult to leave home via the Internet. In 74 percent of these cases, the victim was 15 or older,⁷⁹ and might have been vulnerable to enticement in any form. Filtering Facts cites only one incident of an online relationship facilitated through public library Internet access and resulting in a real world contact. This incident apparently ended with an arrest.⁸⁰

Significantly, the technology is beginning to address some of these concerns. The Internet is increasingly dangerous for sexual predators as well as those involved in illegal distribution of child pornography and other crimes. For example, the National Center's Cyber Tipline, with extensive staffing for handling leads, along with aggressive enforcement efforts by several federal agencies, are increasingly effective in intercepting criminal activities targeting children online.⁸¹ There is also a significant deterrent effect. An anonymous "recovering pedophile" interviewed for Redbook Magazine acknowledged that "on the computer, the search for a victim is an arduous task that's fraught with danger due to the intensity of law enforcement. . ."⁸²

Finally, an increasing wealth of material is available to educate parents and others to common warning signs that particular children may be at risk. According to the National Center, those most vulnerable to sexual predators, whether on or off-line, are children who are lonely, suffer from poor self-esteem, and seek attention. Pedophiles provide that attention through an extensive and characteristic "grooming" process, a relationship that typically occurs over a period of weeks and long before any real world encounter. The communications are usually conducted at night, and there is often extensive telephone or mail contact prior to any real world meeting. There are a number of other behavioral indicators that would likely alert parents to potential problems.⁸³

3. Media Violence
Until recently, concerns about minors' Internet use have focused primarily on exposure to sexual content.⁸⁴ The April 1999 shootings in Littleton, Colorado, however, brought national attention to violence on the Internet and in the media, and have spurred various proposals to label and restrict access to materials with violent content, including books, games and recordings.⁸⁵ These measures parallel proposed restrictions on minors' access to sexual content, but stand on even shakier constitutional ground. Unlike obscenity and material deemed "harmful to minors," no exceptions apply to material depicting hatred and violence. Even calls to violence fall within the ambit of the First Amendment unless they are both intended to produce and are likely to produce imminent lawless action.⁸⁶ And efforts to define violence and to limit government regulation to"bad" (i.e.,"excessive" or "gratuitous") violence have been found ambiguous and vague, incapable of objective determination and therefore constitutionally infirm.⁸⁷

The constitutional impediment to restricting minors' access to violent material, however, has not resolved the public debate. The discussion is complicated by a number of factors. First, the causal relationship between violent imagery and violent behavior, like the connection between pornography and sexual acts or attitudes, is a complex one and continues to be hotly debated.⁸⁸ Moreover, even censorship advocates allow that not all violence is harmful; a myriad of contextual factors and cultural values affect the perception and impact of the material.⁸⁹ Attempts to distinguish "good" from "bad" violence have been unsuccessful, and most definitions would reach materials as diverse as the Bible, the Odyssey, and Schindler's List. Finally, data from group studies aside, no researcher has been able to predict what unique combination of images, words and life experiences will trigger an aggressive response—much less a violent act—in any particular individual. Indeed, at this point, there appears to be no common theme that would explain the recent spate of student shootings.⁹⁰

But in any event, broad-based discussions of media violence are not particularly relevant to the Internet, especially in the context of public library access. Other than the news, works of art, and possibly "hate speech" (discussed below) there is relatively little violent imagery on the Internet, and it is unlikely that time-limited Internet access in a library will result in significant exposure to violent material. "First person shooter" video games like Doom and Quake, mentioned repeatedly in connection with the Littleton shootings, cannot be played on the Internet, except in trial versions or with special software which is not typically available in public libraries.

"Hate speech" and bomb making instructions on the Internet pose somewhat different issues. The Internet does facilitate the dissemination of all types of information, including racist and extremist propaganda. This type of material has long been available elsewhere, and the concern that the increased availability of violent material will lead to an increase in violent activity is not supported by the evidence. Interestingly, the number of anti-Semitic incidents reported to the Anti-Defamation League declined steadily between 1994 and 1997—years of explosive growth in the number of online extremist groups.⁹¹ The survey included any reported overt expression of anti-Semitism such as spray-painted Swastikas and epithets like "dirty Jew," whether or not these could be classified as crimes.⁹² On the other side of the debate, insufficient attention has been paid to the fact that the Internet exposes extremist groups to public view and enhances the ability of law enforcement, as well as private groups, to monitor their philosophy, activities and the links between various subgroups.⁹³

C. Who Should Decide?

1. The Rights and Responsibilities of Parents
Proposals to restrict public library Internet access are based on a one-size-fits-all approach: all children are equally affected, and potential risks from time-limited library access during the afternoon are treated equally with potential harms from prolonged home-based electronic communications late at night. But as discussed above, there is neither a scientific or social consensus on these issues. An assessment of the risks—and benefits—of different types of Internet use for any particular child is a complex process, one that the government is in no position to undertake. Rather, the determination of whether, where and under what circumstances a child should be permitted to access the Internet is most appropriately made by parents.⁹⁴

In Reno I the Supreme Court reaffirmed its "consistent recognition of the principle that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society."⁹⁵ Other courts have likewise recognized that different families have different attitudes to sexually explicit material. For example, in a case involving access to a "dial-a-porn" service, a federal circuit court of appeals emphasized "in this respect, the decision a parent must make is comparable to whether to keep sexually explicit books on the shelf or subscribe to adult magazines. No constitutional principle is implicated. The responsibility for making such choices is where our society has traditionally placed it—on the shoulders of the parent."⁹⁶

The Supreme Court has held that the state has an independent interest in the well-being of its youth; that parental guidance cannot always be provided; and that parents are entitled to "the support of laws designed to aid the discharge of [their] responsibilit[ies]."⁹⁷ But government regulations should not trump parents' independent determinations to permit their children access to the Internet in public institutions. And governmental actions that burden the exercise of those choices—by requiring parents to sign permission forms or mandating their presence when their children access the Internet—do not avoid the constitutional debate.

2. The Independent Rights of Minors
There is a world of difference between a child of six and a sixteen year old, and a rule suitable for one would be indefensible for the other. Children, as they grow and mature, may gain independent constitutional rights to material and Internet communications. Older minors are more likely to use e-mail, to participate in chatrooms and to encounter sexually explicit material through independent Internet research. And, consistent with their own burgeoning sexuality, they are more likely to seek it out. The potential social and educational benefits of their explorations may support a First Amendment right of access, even in the face of parental ignorance or opposition.

The decision in Reno I suggests that the Supreme Court may be willing to scrutinize more closely claims about "harm to minors" from sexually explicit material and to evaluate their independent right to gain access to information and ideas. The decision noted that "the strength of the government's interest in protection of minors is not equally strong throughout the broad coverage of this broad statute" and recognized that the statute's ban on "indecent" speech would preclude many "artistic images of educational value" as well as valuable discussion about birth control practices, homosexuality and safer sex.⁹⁸ In fact, these discussions are of pressing importance to many teens who rely on information and contacts from the Internet for physical and emotional well being.⁹⁹

D. A Final Issue: Libraries' Risk of Liability from Hostile Work Environment Claims

Although most discussions of censorship in public institutions focus on potential harm to minors, there is also some concern that the library itself might face liability for declining to filter the Internet—either on the grounds of facilitating minors' access to sexually explicit materials or by creating a sexually hostile work environment. As discussed above, a California Superior Court has held that libraries are not at risk of civil liability for declining to regulate minors' Internet use.¹⁰⁰ Civil liability based on a hostile work environment also appears unlikely.¹⁰¹

A hostile environment is a form of employment discrimination prohibited by federal and most state laws if based on sex, race or other protected classifications. It is conduct that, for both the affected employee and a reasonable person, and considering the "totality of the circumstances," is so "severe or pervasive" as to alter the conditions of employment.¹⁰² Hostile environment claims are most often based on physical actions and conduct coupled with speech—slurs, threats and taunts. Visual materials may also be elements of a hostile work environment, but images and/or words alone are unlikely to be sufficient to sustain such a claim, particularly if the employee can simply avert her eyes or walk away. This is especially true if the display involves protected speech.¹⁰³

The Internet doesn't change the rules. As Filtering Facts claims, a handful of librarians may be troubled by what they see on patrons' computer screens, but this alone does not give rise to institutional liability. A library that has adopted and enforces rules prohibiting unlawful and harassing behavior of all types—on and offline—is unlikely to be at risk.

E. Less Restrictive Alternatives: Solutions At the Local Level

Eighty-five percent of libraries offering public Internet access do not use filtering software,¹⁰⁴ although, in the wake of media attention to the "dark side" of online life, they are facing increasing pressure to restrict children's access.¹⁰⁵ Instead, they are crafting sound and creative solutions, consistent with local needs.

Acceptable Use Policies ("AUPs") have been adopted by an estimated 97 percent of libraries offering public access.¹⁰⁶ Most policies warn that Internet information may be incomplete, inaccurate or offensive and state that parents must assume responsibility for supervising their children's use. Most AUPs explicitly prohibit illegal activity on library workstations, as well as use of the computer for harassment.¹⁰⁷ Time limits on computer use are typical features of almost all library Internet programs,¹⁰⁸ whether or not they are specified in the AUP. Libraries with more than one Internet access outlet are experimenting with reserving terminals for priority uses at certain times of day.¹⁰⁹

Most libraries also offer Internet training for patrons,¹¹⁰ and this often includes instruction to help users navigate safely and intelligently through cyberspace. Trained to analyze, evaluate and prioritize different sources of information, librarians are well positioned to serve as guides. "Safe Surfing" or "Internet Drivers Ed" programs, supported by a wealth of valuable material from the American Library Association,¹¹¹ as well as government agencies,¹¹² are valuable both for children and adults. Some libraries are considering requiring such training as a condition of Internet use. Complementing these educational efforts, many libraries (whether or not they have their own World Wide Web pages) have created introductory screens for their users that offer a menu of choices and hyperlinks to recommended sites, arranged by topic and by age level.¹¹³ The screens can be developed relatively inexpensively by library personnel based on the preferences and needs of the community, but do not preclude patrons from exploring other areas of cyberspace.

In professional journals and online newsgroups, librarians around the country are considering additional means of encouraging appropriate uses of the Internet, consistent with the character of the library and traditional values of privacy and anonymity: Are privacy screens more trouble than they're worth? Should librarians monitor what patrons are viewing online? If the material is sexually explicit is a shoulder tap necessary or appropriate? Are sign-in policies helpful and, if so, how much information should be collected? As a practical matter, what efforts would be required to enforce parental permissions? Is it possible for librarians to determine which minors might have an independent constitutional right to some material?¹¹⁴ Can concerns be satisfied if the "default" position is unfiltered access and patrons are free to opt-in for filtering?

In the long-term, the positive experiments in many local libraries, the continuing efforts of librarians to seek better solutions, and the mounting evidence of the inefficiency of filtering¹¹⁵ may dampen some of the enthusiasm for this approach in public libraries, at least in the United States.¹¹⁶ In addition, legislation to control spam,¹¹⁷ to protect privacy and prevent unwanted commercial exploitation of children and adults¹¹⁸ will impact the terms of the censorship debate by addressing these concerns directly.

Still, it is unlikely that the censorship pressures will disappear. New technology is being touted as offering sharper tools for discriminating between so-called "appropriate" and "inappropriate" content and is capable of screening e-mail, chat and other functions.¹¹⁹ Myriad variations on the filtering theme—filters at some terminals in some locations within the library and not at others—are still under consideration locally and among state and federal legislatures.¹²⁰ Similarly, some libraries are continuing to experiment with permutations of the parental permission requirement, including "Smart Cards" coded to indicate parental controls.¹²¹ Each of these approaches requires not only an assessment of the practical impact of the proposal on the library and its staff, but also close analysis under the First Amendment.¹²² Moreover, given the uncertain contours of the law, communities must consider whether, as a matter of policy, implementing measures that restrict the free flow of information and ideas is a wise course. A critical factor in the inquiry will be the success of less restrictive alternatives to censorship through education, AUPs and other means.

III. EXPANDING ACCESS TO INFORMATION AND COMMUNICATIONS: THE ECONOMICS OF QUALITY PUBLIC ACCESS

The United States is fast approaching its goal of universal connectivity in public libraries,¹²³ due, in some measure, to the federal E-rate.¹²⁴ However, as explained in Part I, although the extent and quality of connectivity is improving, not all of these libraries offer "effective" access--full graphic capability at an appropriate number of workstations along with a full array of online services and supporting programs. And the primary reason is cost. At a minimum, the following capital costs and operating expenses must be considered¹²⁵:

• Capital costs for telecommunications, including the initial wiring and hardware necessary for the connection to the Internet
• Capital costs for PCs and software
• Ongoing costs of telecommunications through a dial-up modem or faster connections such as cable modems and T-1 lines
• Fees for an Internet service provider
• Equipment maintenance and upgrades, taking into account the technology's built-in obsolescence
• Fees for network memberships and for commercial news and information databases
• Electronic format expenditures, including digitalization of library catalogues and materials
• Staff training
• Staff time in providing user assistance and training programs, creating and enforcing use policies, developing and implementing online services (such as library home pages and guides) and off-line programming
• Ongoing costs of technical support for staff

The federal government contributes to some of these costs through the E-rate, but there is little additional federal funding.¹²⁶ State governments also support technology in local libraries with funds and substantive assistance.¹²⁷ And because the Internet transcends geographical boundaries, enabling users to access information and services from libraries outside their local community, there are persuasive arguments for increased state and federal support. In the meantime, however, local funds will constitute the lion's share of a local library's technology budget, just as they have supported local operating budgets.¹²⁸

For local taxpayers, then, the bottom line can be significant, and even institutions in wealthy towns in the heart of high tech regions are feeling the crunch. The city of Palo Alto recently announced plans to close three branch libraries, due in part to the increased expense of maintaining and improving electronic services.¹²⁹ Other communities—and constituencies within those communities—will have different priorities. Indeed, a 1996 study by the Benton Foundation found that while taxpayers, on the whole, continue to support using tax dollars for computer access and online services, there are differences among various groups based on age, education, race, income and other factors.¹³⁰

With limited budgets and incomplete information about how library patrons use the Internet and the costs and benefits of various choices,¹³¹ local communities face a number of challenging issues:

• What is the appropriate balance between books, electronic materials, and buildings and what segments of the community are most and best served by the various options? While most users welcome technology into the library, others are concerned about the ways in which it—and developments such as library cafes and after-school centers—alters the role of the library as a place of quiet reflection¹³² and heightens security concerns.¹³³ Some librarians, too, have privately expressed concerns that positioning the library as a place of last resort for Internet "have-nots" will alienate middle class support.¹³⁴

• What is the appropriate role of corporate contributions and donations? At what point does reliance on the private sector actually create costs and transform the library into a marketing platform? Some of these issues were raised by the much-publicized pledge of funds for local libraries by Gates Learning Foundation (formerly the Gates Library Foundation).¹³⁵ One commentator calculated the ongoing additional costs of supporting a $33,000 gift from the Gates Foundation to between $46,000 and $62,000—30% to 40% of the library's budget, for system maintenance, user support and training.¹³⁶ Most libraries have accepted Gates' gift, but a few have not.¹³⁷

Corporate contributions may also create or exacerbate censorship pressures. For example, Toys'R'Us recently canceled plans to contribute as much as $1 million to the American Library Association's Fund for American Libraries based on a radio commentator's objections to links on the ALA TeenHoopla site, <http://www.ala.org/teenhoopla/health.html> as promoting pornography and pedophilia.¹³⁸ Teen Hoopla links to Go Ask Alice <http://www.goaskalice.columbia.edu> a site maintained by Columbia University's Health Education Program that contains frank and explicit answers to teens' questions about sex, sexuality and other topics.

• Will the high costs of technology push libraries to charge for some services? Some libraries have begun or are considering doing so for services such as personalized database research. The New York Public Library's Document Express Service, used primarily by businesses, <http://www.nypl.org/research/docdelivery>, is one example. A 1996 study by the Public Library Association showed that nearly half of the responding libraries offered information retrieval and search services for businesses and a third of those charged a fee.¹³⁹ Another study reported that in 1993, 73 percent of responding public libraries had income from fees including online searching.¹⁴⁰ Fees may be justified by a number of factors including the high cost of electronic access and the fact that they are typically for "non-standard" services and may be imposed on those outside the jurisdiction that bears the brunt of subsidizing the local institution. Also fees are supported by a significant percentage of both non-library users and users.¹⁴¹ On the other hand, the practice raises serious questions about equity of access. The American Library Association has taken a formal position opposing fee-based services,¹⁴² and they may violate library enabling statutes in some states.

CONCLUSION

Computers and the Internet are changing our society in ways we can only begin to imagine. Creating new outlets for expression, expanding the audience for information, and lowering barriers to participation, the technology has the potential to foster free speech, the exchange of ideas, intellectual inquiry, and democracy in new and unique ways. The public library, a place of first and last resort, can play a critical role in that process by offering to all who seek it access to a virtually unlimited world of information, ideas, connections, and conversations.

These changes threaten established communities, structures, and hierarchies. They force us to reexamine our commitment to First Amendment values and to explore constitutional and democratic principles in a new context—one in which the barriers to free speech and inquiry are created, rather than imposed by the limits of technology. Libraries will be the laboratories in which some of the possibilities created by the Internet—for expanded freedom, enhanced education and knowledge, and more inclusive democracy—can be tested and explored.

The participants in these experiments would do well to heed the observation of a federal judge in ruling against censorship of the Internet:

Indeed, perhaps we do the minors of this country harm if First Amendment protections, which they will with age inherit fully, are chipped away in the name of their protection.¹⁴³

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The publication was made possible by a grant from the Open Society Institute and is a joint publication of the Open Society Institute and the National Coalition Against Censorship

© National Coalition Against Censorship, 1999